Legislation & Regulation
Legislative and Regulatory Update
January 2020 by Scott Harn
• PLF files petition with US Supreme Court on behalf of Oregon miners
As we reported last month, the Pacific Legal Foundation (PLF) agreed to assist mining attorney James Buchal and miners in Oregon with a petition to the US Supreme Court regarding the “no addition” argument for suction dredging.
The Oregon Department of Environmental Quality claimed suction gold dredgers are required to obtain a Section 402 EPA permit as a polluter, but the Clean Water Act clearly states there must be the addition of a pollutant to trigger the need for such a permit.
In Eastern Oregon Mining Association v. Oregon Department of Environmental Quality, the Oregon Supreme court (in a 6-1 decision) ruled that the mere movement of material already within a navigable waterway was deemed to be an addition. The US Supreme Court petition from PLF seeks to fix this error. It has now been completed and submitted to the US Supreme Court for consideration.
A few select quotes from the US Supreme Court petition:
...For today’s suction dredge miners the principal threat comes from heavy-handed government.
...The Court should resolve the conflict between...courts...that have adopted the “mere movement” rule...holding that the mere movement of pre-existing pollutants within a regulated water does not trigger the Clean Water Act’s permitting requirement.”
...This Court should reinforce the textual boundaries of the Clean Water Act to arrest the Act’s continued deformation into an overbearing federal land-use statute.
The arguments are well-written, clear and concise, and backed by significant case precedence. This seems to be the strongest US Supreme Court petition we’ve seen to date to get the clarification necessary and get suction gold dredgers back to work.
• Land and Water Conservation Fund abuse by Forest Service
A review by the Government Accountability Office found the US Forest Service ignored federal restrictions to acquire many thousands of acres of new federal lands.
The federal Land and Water Conservation fund includes provisions that limit the amount of land the Forest Service can acquire in Western States to “not more than 15 percent” of purchases. However, the GAO report found the Forest Service added 124,000 acres—with 76% of those lands out
west—from 2014 through 2018.
Though Senator Lisa Murkowski, chair of the Senate Energy and Natural Resources Committee, called for greater oversight to avoid this problem in the future, she failed to call upon the agency to dispose of lands that were above the legal threshold.
• Army asks for REE proposals
The US Army announced plans to fund the construction of rare earth processing facilities. It’s the first time taxpayer funds will be used for the production of rare earths since the Manhattan Project, which was undertaken to create the first atomic bomb during WWII.
The stated goal is to reduce the reliance on China for rare earth minerals essential for advanced weapons and technology.
The Army announcement asked for proposals for a pilot plant and agreed to cover up to two-thirds of the cost of a new processing facility.
Direct and Constructive Notice
It's a proven civil remedy to put an end to harassment by notifying a person who is either overstepping their authority, or failing to act as required, that they will be sued personally for an act or omission.
Legislative and Regulatory Update
• Nevada miners get reprieve
• Georgia Senate race may set the stage for mining regulations
• New Executive Order on critical minerals
• Interior Department makes adjustments to LWCF
Judge Tosses Lawsuit Against Tucson-Area Mine
A federal judge has tossed a lawsuit filed by opponents of a Tucson-area mine that had accused the US Forest Service of violating two federal laws in its handling of the mine issue.
Legislative and Regulatory Update
• Governors push back on Biden’s public lands acquisition plan
Captain Obvious Strikes Again
The paper’s crack reporters filed requests under the Freedom of Information Act, demanding public release of “secret” emails explaining why the Interior Department recommended, and President Trump approved, shrinking Bears’ Ears and Grand Staircase Escalante National Monuments.
Legislative and Regulatory Update
• California suction dredging
• House shows support for public land use
Traders At JPMorgan Chase Indicted For Rigging Metal Prices
…the men sought to “inject false and misleading information about the genuine supply and demand for precious metals futures contracts into the markets, and to deceive other participants”…
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